The Importance of the Doctrine of Separation Powers to Botswana's Public Administration

All around the world there is need to achieve and maintain peace in the governing of the state. So in order to reinforce this there is the practice of the doctrine of separation of powers in different nations. So this essay is set out to explain in detail the history of the doctrine from where it all started and how it came to be practiced in Botswana. Of course the separation of powers ensures the efficient way of running a country but will it manage without the help of public administrators otherwise known as the bureaucrats?

So in continuation this essay will go on to discuss the full details of the public administration, its definition, organisation, functions and the importance of separation of powers to its existence. To spice it up there will be a little criticism discussed regarding this systems of governance. A well summarised conclusion will sum up the whole discussion THE THEORY OF SEPARATION OF POWERS.

Even though there are different authors who have tried to enlighten us with the meaning of separation of powers, according to my own knowledge it is the division of governmental authority in the sense that it divides the authority into three branches namely the legislature which comprises of the parliament, the executive comprising of the president, vice president, the cabinet and the public service lastly the judiciary comprising of the body of judges in the country. In this way no branch can gain absolute power or abuse the power they are given in other words separation of powers limits the powers vested in any of the branches.

EXECUTIVE Separation of powers LEGISLATURE JUDICIARY Check and balances Now getting into more important information, according to Mclean (2009:481) separation of powers doctrine means that political power should be divided among several bodies as a precaution against tyranny. In continuation they state that separation of powers emerged in the seventeenth century. locke distinguished the executive, legislative and federative powers although he did not intend them to be separate.

Then the French political thinker Baron De Montesquieu developed this into a full blown theory of separation of powers of the executive, legislature and the judiciary. From here it passed to the US constitution and its justification in the federalist papers. Furthermore still in the theory of separation of powers Allen and Thompson (2008:30),they state that when the Legislative power is united with the executive in the same person or body of magistrates, there is no liberty because it is to be feared that the same monarch or the same senate will make tyrannical laws in order to execute them tyrranically.

There is no liberty if the judicial power is not separated from the legislative power and from the executive power. If it were joined with the legislative powers, the power over the life and liberty of citizens will be arbitrary because the judge would be legislator. If it were joined with the Executive powers the judge would have the strength of an oppressor. All would be lost if the same man or the same body exercised this powers, that of making laws, that of executing public decisions and that of judging the crimes of the private person.

According to Dingake (2000:3) he also argued that differentiation must not only be in respect of the powers, but it must also extend to the personnel which run this organs. THE BRITISH PARLIAMENTARY SYSTEM Even here according to Fombad (2005:313) the same three governmental powers exist in Britain. There is fusion of powers and because of this concentration of legislative and executive powers, there is no strict separation of powers in Britain on the scale provided in the U. S constitution. The Parliament controls the executive by its power to oust a govt by withdrawing parliamentary support.

The executive also exercises some control over the judiciary through the appointment of its members. Absent a written constitution, there is no formal separation of powers. Botswana has been influenced by the practice of separation of powers in Britain, even though the separation of powers is not absolute it is stated in the constitution of Botswana Section 86. This was done to prevent the abuse of power vested on one organ, for accountability, freedom of individuals, political liberty and the system of check and balances.

The check and balances meaning that each branch’s independence helps keep the others from exceeding their power thus ensuring the rule of law. ROLES OF THE THREE BRANCHES OF GOVERNMENT THE EXECUTIVE-Its involved with the execution of policies, also known as the core of the government. It has the power to make decisions for the administration of the country or enforces laws, also protects the country against external threats be it political, economic or military threats.

According to Nsereko (2002:43) in a welfare state like Botswana it is the function of the state and the duty of the executive to make sure that the welfare of the citizens is taken care of, provision of social services such as education, health care, care for the handicapped and the destitute. His duties increase every day. THE LEGISLATURE- Given power to make laws, also represent the citizens of the country. Consists of the National Assembly and House of Chiefs. Under this We see that the National Assembly Speaker is a high ranking public officer which will be a major discussion in this discussion.

THE JUDICIARY-It is given the power to interpret laws thus it has the following checks over the executive; once the judges are appointed for ;life they are free from the control of the executive branch and determines whether the law is unconstitutional or not. Checks over the legislative branch, courts can judge legislative acts to be unconstitutional. Then the question arises,since when the roles of the organs of the government are summed up its mostly making the policies and laws for the citizens,who implements them? this takes us to the public administrators.

DIFINATION OF PUBLIC ADMINISTRATION AND ITS ORGANISATION In order to understand a concept take it bit by bit, therefore before understanding public administration (PAD), administration has to be understood first. According to Heywood (2002:363)administration generally means the task of coordinating and executing policies, it implies assisting or serving others. All civil servants are involved in administration. He goes on to say Public Administration refers to the mechanisms and institutions through which public policies are put into effect.

Also according to McLean (2009:440) PAD denotes the institutions of public bureaucracy within a state this is the organisational structures which form the basis of public decision-making and implementation and the arrangement by which public service are delivered. So to my understanding Public Administration is all about the civil servants or bureaucrats bringing services to the people/citizens after certain evaluations of the policies by the organs of the government. Bureaucrats are known as the technocrats and experts in their own respective fields, they are thousands in number and hired according to their qualification.

The President is the one responsible for the general organisation or set up of the bureaucracy, he determines its size. All state bureaucracies are in some way organised on the basis of purpose or function, this is achieved through the construction of department, ministries and agencies charged with responsibility for particular policy areas:education,housing,defence and taxation. Administrators/bureaucrats are the key figures in the policy process, thus there is no government department without bureaucrats, there are the backbone of the running and administering of public service to the citizens.

Under PAD more importantly there is no ministry without a permanent secretary. The permanent secretary is in actual administrative control of the ministry. Therefore since the doctrine of separation of powers was practiced to avoid vesting power in one organ and to run the state with ease but with the help from public administration, that is why the constitution of Botswana saw it fit for all of the govt departments to have public officers who directly deals with the concerns and welfare of the people. Stated in the constitution of Botswana section 52: “according to the public service Act,1998,Act No.

13 of 1998,Section 2(2),permanent secretary’ includes the holder of the public office of that designation responsible, subject to the directions and control of the minister, for the supervision of a ministry, and the holders of the following public offices namely, Secretary to the Cabinet, Administrative Secretary in the office of the president, attorney general, auditor general, director of public service management, commander of Botswana defence force, deputy commander of Botswana defence force, commissioner of police, secretary of external affairs, secretary of financial affairs and secretary of the independent electoral commission.

” PAD PRACTICES AND THE IMPORTANCE OF THE DOCTRINE OF SEPARATION OF POWERS The practices of PAD are of great importance to the every day running of the government. Sometimes to my own opinion public administrators should be named the fourth organ of government in the constitution because to me they somehow have their independence. Their important function is as follows. POLICY ADVISORS AND IMPLEMENTORS This is the prime function of the bureaucracies, it is the chief source of policy information and advice to the government. though to me there is no difference between giving policy advice and making the policy.

The policies are made in the legislative branch therefore this branch is dependent on the public officers for the implementation of this policies. For example through the public institutions involved with Public administration the policies made and agreed upon by the organs of the government are carried out, for example: Under the ministry of education and skills, all the public officers under that ministry did all the administering of the policy on the re-introduction of school fees to the public.

There are the ones that take the concerns and feedback of the policy to the government from the public. Another example is that under the Ministry of Land and Housing policies are made and carried out to the public by the administrators. The public administrators are very active in the sense that they are participating in the everyday running of the country, like I mentioned before the role of the Executive of Botswana is to uphold the welfare of Batswana, how can he do this without the help of the administrators?

In order for the country’s regions to have better welfare there have to be enough experts in different departments that deal with it. Otherwise shortages will lead to unwanted complexities among citizens. Looking in the case of Old Naledi location in Gaborone City, there is only one clinic that attends to thousands of people, what lead to this? well for starters the department of health lacks the public officers who specialise in the health fields to come up with efficient decisions to address this issue.

The Botswana police and the Botswana defence force are part of the public service under the executive branch, they are involved in actually carrying out some of the functions of the Executive like protecting the country from external threats especially war threats and also they safe guard the public locally through their many tactics,e. g through crime prevention programmes. All the three organs of the government under the separation of powers in Botswana have public officers working for them as seen in the above paragraphs.

CRITICISM First of all the separation of Botswana is not absolute it is just the same as the British one, here in Botswana power is vested mainly on the Executive and sometimes stifling other organs. How can so much power be vested in one person and people still say its separation of powers. The fact that the President can excuse criminals from the their sentences finalised by judges and the fact that he can dissolve parliament whenever he wants is the true proof that there is the violation of the doctrine of separation of powers.

In Botswana the President is above the law why is that? Even Professor Kenneth Good criticises the doctrine in this country. How can Ntlo Ya Dikgosi be consulted in the constitution reform process but not allowed to have legislative powers when it is under it. CONCLUSION All in all the three organs of government in Botswana heavily depend on the bureaucrats to implement their policies to the public so as to fulfil their functions of running and governing the country. And again Public Administration depend on the government for posts, it is the hand that feeds them.

BIBLIOGRAPHY Allen and Thompson,(2008):constitutional law,USA,New York Dingake O. B. K,(2000:3):key aspects of constitutionalism in Botswana, pula press,Gaborone,Botswana Fombad C M,(2005):The separation of powers and constitutionalism in Africa: the case of Botswana, Boston College Third World Law journal Heywood A,(2002),politics,houndmills press, New York Mclean I and McMillan A,(2009),oxford concise dictionary of politics,oxford university press,New York Nsereko D,D,N,(2002):constitutional law in Botswana, Pula Press, Botswana.